Setting Aside a Will – Undue Influence

One way to challenge the validity of a Will is to allege that undue influence was exercised over the Testator. Related articles are:

The burden of proving undue influence rests with the party making the assertion. It is a high burden. One of the difficulties will be the absence of the chief witness namely the Testator.

Often when one child stands to inherit the whole or majority of the Estate, their siblings will assert that the Testator has been persuaded by the inheriting child to alter their Will, particularly when the children have been led to believe they will inherit equal shares of their parent’s Estate. The child who stands to benefit may have visited the Testator more frequently and/or provided help with day to day living. The others will feel that child was well placed to whisper in the Testator’s ear.

Mere influence is not sufficient

Mere influence however is not sufficient to overturn a Will; that influence must be undue. An example of undue influence is the frail, elderly Testator living alone fearful of one child who makes untruthful allegations against the others causing the Testator’s own discretion and judgment to be overborne. Another example is the carer who isolates the elderly and frail from friends and family thereby making that person dependent upon the carer such that the Testator will do whatever is necessary to please the carer.

Solicitors when preparing a Will, if concerned about whether or not the Testator’s true wishes are being put forward, will usually insist on seeing the Testator alone and will investigate the reasons behind any change of heart as against the content of any previous Will. Nevertheless if the Testator is staunch and forthright in their instructions, the solicitor is less likely to identify any ulterior motives.

An unsuccessful plea of undue influence in contentious probate proceedings generally leads to an adverse Costs Order.

What is undue influence?

In cases where a Claimant seeks to set aside a Will on the basis of undue influence, the Claimant must be able to prove that:

  • the Defendant was in a position to exercise influence;
  • the Defendant did exercise influence over the Testator;
  • the influence so exercised was undue;
  • the undue influence was exercised in relation to the disputed Will; and
  • it was by means of the exercise of that undue influence that the disputed Will came to be executed.

Undue influence exerted for the benefit of someone other than the person exerting the influence could also result in a Will being set aside.

The Court is likely to be assisted by the evidence of:

  • witnesses who knew the Testator, particularly old friends and neighbours;
  • medical evidence as to the Testator’s physical, emotional or mental frailty;
  • carers and social workers (assuming they are not involved in the claim);
  • Relations (although evidence of family members can be coloured by family disputes);
  • Solicitors who prepared the Will.

By Sarah Payne, Litigation Solicitor at Cambridge solicitors Barr Ellison

Disclaimer: This guide contains general information only and does not constitute legal advice.  You need to consult a suitably qualified lawyer from the firm on any specific legal issue. 

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